Date of Decision: DEC. 23, 2022
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Software Development
Petitioner Information
Profession: Senior Software Developer
Field: Software Development
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
- Exceptional Ability: The Petitioner was recognized as an individual of exceptional ability in software development.
- Well-Positioned to Advance Proposed Endeavor: The Petitioner demonstrated his capability and experience to advance his proposed endeavor.
Criteria Not Met:
- National Importance: The Petitioner failed to demonstrate that his proposed endeavor has national importance.
- Balancing Labor Certification Waiver: The Petitioner did not sufficiently show that waiving the job offer requirement would benefit the United States.
Key Points from the Decision
Proposed Endeavor:
The Petitioner plans to establish his company in the U.S. as a senior software developer, providing next-generation software solutions and mentoring IT professionals. His work aims to enhance the efficiency and productivity of U.S. companies through innovative software.
Substantial Merit and National Importance:
While the Petitioner’s field is recognized as important, he did not demonstrate that his specific proposed endeavor holds substantial merit or national importance. The evidence provided was more about general industry importance rather than his individual impact.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process
The Petitioner did not establish that it would be beneficial to the United States to waive the labor certification process. The evidence did not sufficiently show the national significance of his proposed endeavor or the urgency of his contributions.
Supporting Evidence:
The Petitioner submitted background materials about software development, past projects in Brazil, and a business plan. However, these did not specifically relate to his proposed endeavor’s national importance.
Inconsistencies in Proposed Endeavor:
The nature of the proposed endeavor evolved during the proceedings, introducing inconsistencies. The initial focus was on software solutions for businesses, later shifting towards water conservation technologies.
Supporting Documentation
Letters of Intent:
Provided letters from clients, which demonstrated the importance of his work for individual businesses but did not establish wider national impact.
Business Plan:
The business plan projected the creation of jobs and indirect employment but lacked specifics and relevance to national importance.
Advisory Letter:
Submitted opinion letters from IT industry experts and college faculty, which described the general significance of software development without connecting it to the Petitioner’s specific contributions.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The Petitioner did not establish that his proposed endeavor holds national importance or that waiving the labor certification requirement would benefit the United States. The evidence provided was insufficient to demonstrate eligibility for a national interest waiver.
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